Your New Ninth Amendment
Because most of this is nobody’s business.
The other day, I published my take on a fully amended Constitution. It’s a 38-minute read. Who has 38 minutes to read founding documents, especially when much is left untouched? So, I’m breaking it up into chunks.
Here’s your new Ninth Amendment. I realize that each paragraph, or at least paragraphs on a related subject such as abortion, would most likely be proposed as a separate amendment to be placed at the end if passed. I put everything here to highlight the disparity between what the Constitution expressly provides for and what must now be made explicit.
Additions are ALL-CAPS in bold. Deletions are bold in italics. Afterwards, I will share my thinking on this. It’s not that deep.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
A. NEITHER THE STATES NOR THE FEDERAL GOVERNMENT SHALL REGULATE CONSENSUAL INTIMATE OR SEXUAL CONDUCT BETWEEN PERSONS 18 YEARS OF AGE OR OLDER WHO ARE NOT BLOOD RELATIONS.
B. NEITHER THE STATES NOR THE FEDERAL GOVERNMENT SHALL PROHIBIT THE SALE AND/OR PRESCRIPTION OF BIRTH CONTROL METHODS USED BY EITHER MEN OR WOMEN EXCEPT TO REGULATE SAFETY AND EFFICACY, IT BEING UNDERSTOOD THAT NO METHOD OF BIRTH CONTROL IS 100 PER CENT EFFECTIVE.
C. NEITHER THE STATES NOR THE FEDERAL GOVERNMENT SHALL PROHIBIT OR INTERFERE WITH A PREGNANT PERSON’S RIGHT TO MEDICALLY TERMINATE A PREGNANCY BEFORE THE EXPIRATION OF THE FIFTEENTH WEEK AFTER A MISSED MENSTRUAL PERIOD NOR SHALL CONSENT OF THE FATHER BE REQUIRED. WHERE THE PREGNANCY HAS PLAUSIBLY BEEN THE PRODUCT OF RAPE OR INCEST, AS ALLEGED IN A POLICE REPORT, THE PERMISSIBLE PERIOD SHALL BE EXTENDED TO TWENTY WEEKS. THE STATES MAY ENACT LONGER WINDOWS IN WHICH MEDICAL TERMINATION IS PERMISSIBLE. NEITHER CONGRESS NOR THE STATES SHALL REQUIRE THAT EMBRYOS CREATED PURSUANT TO IN-VITRO FERTILIZATION TREATMENT BE IMPLANTED INTO A PERSON AGAINST THAT PERSON’S WILL. SUCH EMBRYOS MAY BE DISPOSED OF.
D. NEITHER THE STATES NOR THE FEDERAL GOVERNMENT SHALL PROHIBIT OR INTERFERE WITH A PREGNANT PERSON’S RIGHT TO MEDICALLY TERMINATE A PREGNANCY AT ANY POINT WHEN REASONABLY NECESSARY TO PREVENT THE PREGNANT PERSON FROM SUFFERING DEATH OR SERIOUS BODILY INJURY.
E. NEITHER THE STATES NOR THE FEDERAL GOVERNMENT SHALL INTERFERE WITH A PREGNANT PERSON’S RIGHT TO MEDICALLY TERMINATE A PREGNANCY WHEN THE FETUS HAS BEEN DIAGNOSED WITH GROSS ABNORMALITIES RENDERING SURVIVAL OUTSIDE THE WOMB UNLIKELY OR IMPOSSIBLE WITHOUT FULL-TIME CARE. NEITHER THE STATES NOR THE FEDERAL GOVERNMENT SHALL MAKE OBTAINING ANY MEDICAL SERVICES PURSUANT TO THIS PARAGRAPH MORE BURDENSOME THAN ANY OTHER MEDICAL SERVICE, EITHER THROUGH INHIBITORY REGULATIONS OR WITHHOLDING OF FINANCIAL BENEFITS. ANY METHOD, INCLUDING PRIVATE CIVIL ENFORCEMENT, AUTHORIZED TO INTERFERE WITH THE RIGHT TO MEDICALLY TERMINATE A PREGNANCY GUARANTEED BY THESE PARAGRAPHS SHALL BE CONSIDERED STATE ACTION FOR PURPOSES OF THIS CONSTITUTION AND ANY APPLICABLE REMEDIAL FEDERAL STATUTE.
F. EACH STATE SHALL RECOGNIZE CIVIL MARRIAGE BETWEEN ANY TWO UNRELATED ADULT PERSONS REGARDLESS OF EITHER OF THE PERSON’S RACE, SEX, GENDER, RELIGION, SEXUAL ORIENTATION, OR OTHER IMMUTABLE CHARACTERISTIC. THESE CHARACTERISTICS ARE EQUALLY IRRELEVANT TO THE RIGHT TO CONCEIVE, ADOPT, AND PARENT CHILDREN.
G. NO STATE LEGISLATIVE DISTRICT OR FEDERAL CONGRESSIONAL DISTRICT SHALL BE DRAWN IN A MANNER THAT ARTIFICIALLY DILUTES THE INFLUENCE OF VOTERS ON THE BASIS OF RACE, RELIGION, SEXUAL ORIENTATION, NATIONAL ORIGINAL, OR RECOGNIZED POLITICAL PARTY.
THE CONGRESS SHALL HAVE POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS AMENDMENT.
PARAGRAPH A: In Lawrence v. Texas, the Supreme Court held that the Constitution protects consensual sexual conduct between adults, regardless of the gender of the players. Dobbs, the Supreme Court opinion overturning Roe v. Wade, makes Lawrence vulnerable because sexual freedom is not listed in the Bill of Rights. In his concurrence, Justice Thomas said, “Bring it on.” The majority said this without saying it.
Paragraph A puts Lawrence in the Constitution. The inevitable rejoinder “But the Bible” is not an answer. As I say in my First Amendment discussion, most laws, like “Don’t kill,” that mirror biblical edicts are empirically self-validating. By contrast, “Get your dick out of that man’s mouth and stick it in this woman’s because Jesus (or Leviticus)” is not an adult argument. On this issue, there is none. Let people who aren’t hurting anyone be happy.
If those on the right can’t empathize with gay people, they should pity poor Donald Trump. There’s a famous law review article on the Second Amendment called Why Can’t Martha Stewart Have a Gun? If Lawrence falls, one might ask “Why can’t Donald Trump get a blow job?” Much as I wish him no joy, there’s no good reason.
PARAGRAPH B: In Griswold v. Connecticut, the Supreme Court held that the Constitution safeguards the right of married couples to buy and use contraception. The Court extended that holding to unmarried couples in Eisenstadt v. Baird. Justice Thomas wants to kick these to the curb. The majority opinion in Dobbs would support this.
There’s disturbingly little support in the anti-choice movement for upholding Griswold and easy access to effective contraception. The two issues seem to be part of an effort to return us or, rather, take us to some biblical view of womanhood. Again, no. If you want your sexy time to be all about procreation, go ahead. Leave everyone else alone.
PARAGRAPHS C, D, AND E: This is why the subtitle of this article only says “most of this is none of your business.” These paragraphs reinstate Roe v. Wade and Planned Parenthood v. Casey, both of which recognized that at some point, the state’s interest in seeing a fetus carried to term becomes compelling. There’s no point in pretending otherwise.
Much of the beef with Roe ostensibly stemmed from the feeling that it was foisted on the country by seven old white men in an opinion with no textual and debatable jurisprudential support. Enacting limited abortion protections via the amendment process is, or should be (see Paragraph I and my prohibition on gerrymandering) the ultimate democratic process. There is reason to believe such an amendment would pass.
None of the restrictions previously upheld involved outright bans, presumably because national support for abortion rights basically tracks Roe’s trimester framework. While newly enacted or triggered total bans have proven to be good political hay, there’s no reason that those can’t be rolled back in the spirit of compromise, particularly there’s strong support for that.
To the point, “We don’t compromise on innocent life to serve lifestyle choices,” even Dobbs recognized the logic of the argument about personal autonomy; such autonomy just was not constitutionally guaranteed. Further, we compromise like that all the time. Nobody believes the speed limit should be 20 miles an hour to save the 30,000+innocent lives annually lost to traffic accidents. People opposed COVID lockdowns because business had to be done. Innocent people died. Lots of them. As we enter the endemic phase, we have accepted excess deaths in the six figures as a cost of doing business, i.e., as a lifestyle choice. Our national commitment to life above all is flexible and context-specific.
Finally, and once again, think about poor Donald Trump. (What Would Trump Want is the new What Would Jesus Do?) Would he like the right to pay for an abortion? Odds are. How about if the girl could just take care of it herself and not bother him? Even better. There is room for compromise here.
PARAGRAPH F: It would be karmic justice if the interracial marriages of Clarence Thomas and Mitch McConnell and the gay marriages of Trump-endorsing Log Cabin Republicans were undone in the next onslaught. We should not let that happen any more than we should deny Donald Trump his blow jobs. Loving v. Virginia, the seminal case on interracial marriage, may be less vulnerable than Obergefell v. Hodges, the gay marriage case, because Loving is more grounded in the Equal Protection clause than in the substantive due process principles Justice Thomas wants to eradicate. Still, if the Court will now view everything through the lens of how things were done around 1868, it’s hardly safe.
Interracial marriages (and divorces) and gay marriages (and divorces) have not hurt anyone. Like any other marital convention, they make society and the homes in which children are raised a little more stable. The only beef against them is hate, laundered through the Bible. Again, that’s no justification.
PARAGRAPH G: This is about gerrymandering, so I hope that’s a salamander.
A tremendous hypocrisy has been at work for years. Republicans argue against affirmative action and regulation because they are inconsistent with principles of merit and fair competition. They also rig the game when it comes to elections, ensuring that a minority of the national electorate controls the national government.
Bravo, I guess, for changing the rules to get to bat twice while everyone else was just focused on playing the actual game. That’s a sad admission you can’t win straight up. You can’t persuade enough people that your views on the economy, cultural issues, foreign policy, etc. are better than theirs. You can’t compete. You have to cheat.
In the Bill of Rights, the Constitution excludes certain areas from infringement by the majority. Founding era misjudgments stuck us with the anti-majoritarian Senate and Electoral College. (Elsewhere in my Constitution, I address this.) Nonetheless, the Constitution does not guarantee minority rule in all respects or even in a significant respect.
After 2016, Donald Trump said if the election had been decided by popular vote, he would have campaigned differently and won. Republicans should have that confidence at all phases of government. The maxim “Noli esse pussy” applies here.
THE END
If you you enjoyed this free read, please put my political satire, “Threeway” on your Kindle for cheap. Or get the paperback. (Different subtitle, same book. Don’t ask.)
Here’s a good review from Kirkus. Thanks for reading.
